Milestones in the struggle against torture in Israel

The Convention Against Torture

The United Nations’ Convention Against Torture, Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT) came into effect in June 1987. Israel signed and ratified the convention, which defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
Article 2 of the Convention notes that, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

The Landau Commission

Until 1987 the operations of the ISA were completely obscured from the public eye; in fact there was no oversight of its activities whatsoever. The Landau Commission was a governmental commission of inquiry formed in 1987 in response to the interrogation, torture and charge of espionage hurled at the innocent Circassian-minority IDF officer First Lieutenant Izzat Nafsu.
A government decree of 31 May 1987 ordered the formation of a governmental commission of inquiry to look into the ISA’s interrogation methods and the in-court testimony given regarding these methods. A further purpose of the commission was to recommend future interrogation methods and guidelines for the ISA.
The Commission’s report was delivered to the government on 30 October 1987. An important aspect of its recommendations refer to ISA interrogations seeking to foil terror attacks: “the primary focus of the means of pressure applied should be non-violent and psychological, part of an intensive and prolonged interrogation which employs ruses and stratagems.” But “when these fail to achieve their goal, the use of a moderate degree of physical pressure is unavoidable.” This last sentence essentially authorizes torture.
In any case, not long after the Commission’s report the First Intifada broke out, during which ISA interrogators systematically transgressed these recommendations.

HCJ Torture ruling

Until the HCJ’s September 1999 ruling, the Israeli security forces tortured thousands of Palestinian detainees every year. PCATI estimates that almost all interrogees were subjected to at least one form of torture during their interrogation.
The ISA’s interrogation practices were not regulated in law, but were instead governed by the recommendations in the Landau Commission Report. Only a portion of this report was publicly released, however, and the portion detailing permissible interrogation methods remained confidential. The ISA’s characteristic interrogation and torture methods were:

• Shackling interogees in painful stress positions for hours and even days at a time with a wet, foul-smelling bag covering their heads.

• Isolation in solitary confinement.

• Beatings.

• Violent shaking – when an ISA interrogator grabs the interrogee’s shoulders or shirt lapels and shakes his body and head violently back and forth.

• Sleep and food deprivation.

• Exposure to extreme heat or cold.

• Shackling to a small, slanted chair.

• Cursing and psychological degradation.

• Exposure to loud music.

• Threats to the detainee or his/her family.

• Deprivation of basic sanitary conditions and changes of clothing.

• Isolation from the outside world (including attorney and relatives), often for months at a time.
These methods caused often irreversible psychological damage and bodily injury, and in some cases even death.

In September 1999 the HCJ ruled in favor of most of the claims made in a petition filed by PCATI and other human rights organizations. The HCJ ruling forbade the use of a number of methods of interrogation, ruled that the ISA has no authority to employ violent interrogation methods, and determined that the ISA has interrogatory authority identical to that of the Israel Police.

Yet the precedent-setting September 1999 HCJ ruling, which forbade the use of several torture methods, nevertheless left significant loopholes which enable the ongoing use of torture and ill-treatment in ISA interrogations. The primary loophole is the “necessity of defense,” which under certain conditions absolves interrogators of criminal liability for using prohibited interrogation methods including physical abuse of the detainee. Thanks to the necessity defense, when an interrogee files a complaint of torture, the Attorney General orders a preliminary examination of the complaint in order to determine whether the “necessity of defense” applies thus freeing the interrogator of liability.

While the “necessity of defense” is valid in criminal law and granted in extremely rare cases, it has no place in international law, which defines torture as a punishable crime. To date, this preliminary examination has prevented the thorough and impartial criminal investigation of complaints ever filed by PCATI.

Numerous affidavits taken from Palestinian interrogees since the HCJ torture ruling clearly indicate that the court’s decision to grant ISA interrogators independent discretion in certain cases has enabled them to employ violent interrogation methods.

The ISA and its leaders have never relinquished the idea that the most effective way of extracting confessions or information is through inflicting psychological and bodily suffering, exhaustion and degradation. As a result, the HCJ’s attempt to grant security suspects their fundamental rights has proved ineffective.

The Public Committee Against Torture’s reports published in the years since the HCJ ruling have revealed:

• Numerous Palestinians interrogated by the ISA are exposed to torture and ill-treatment.

• The ill-treatment of Palestinian detainees begins with the denial of their right to interact with the outside world –to be held incommunicado – especially with their attorney and members of their family, often for extended periods.

• The torture and ill-treatment includes:
– Routine methods including sleep deprivation, shackling to a chair in painful positions, beatings, slapping and kicking, threats, curses and humiliation.
– Special methods such as bending the body in painful stress positions, prolonged shackling with handcuffs behind the body, deliberate tightening of handcuffs, stepping on handcuffs, application of pressure on various limbs, forced squatting in the “frog” position, choking, violent shaking and other means of violence and degradation (pulling out of hair, spitting, etc.).
– Subhuman detention and imprisonment conditions: sleep deprivation, exposure to extreme heat or cold, constant exposure to artificial light, detention under sub-human conditions contravening the basic standards outlined by the UN (prison cells with cockroaches and mice, abhorrent sanitary conditions, rations too close to the hole in the ground which serves as toilet, failure to provide warm water or a change of clothes, weak artificial lighting all day and so on).
– Psychological torture and damage through the use of threats or the creation of false scenarios to pressure detainees, often using the interrogee’s family members.

There are grave problems with the investigation of interrogee complaints of torture. Complaints submitted against agents of the ISA – many of which are filed by PCATI – are pre-examined by the department of the Inspector of Interrogee Complaints (IIC) under the Ministry of Justice. The IIC interviews both the interrogators and the victims, looks at the documentation of interrogations and then suggests to the State Attorney General if to open a criminal investigation into the allegations. Based on PCATI’s monitoring work, currently it takes more than 23 months for the IIC to process a complaint and pre-investigate a case. The UN Human Rights Committee states that “Complaints [of ill-treatment] must be investigated promptly and impartially by competent authorities so as to make the remedy effective.” In Encarnación Blanco Abad v. Spain – an international precedent – the investigation took ten months, with gaps of one to three months between investigative actions during the process. The Committee found this timeframe to be an unacceptable delay. In light of the precedent we can conclude that in Israel the investigation of torture complaints by the IIC still takes more than twice the time as indicated in international law.

The 1999 HCJ ruling, which was supposed to put an end to torture and ill-treatment, limiting them to extraordinary “ticking bomb” situations, is steadily eroding as the “necessity of defense” has become no more than a superficial ruse. PCATI’s investigations clearly indicate that the routine “ticking bomb” procedure does not involve the immediate discretion of an interrogator “facing an unforeseen occurrence” as described by the HCJ, but rather a streamlined process by which interrogators request and receive a priori authorization from their superiors to employ various violent means. Some of these authorizations are granted to several interrogators at once.

Thus, though the precedent of the 1999 HCJ ruling was historical, it failed in that it did not absolutely prohibit torture, but rather left ISA interrogators discretion to employ torture – even if only in extreme cases. Today, thanks to the ISA’s torture policy, the HCJ, and the Attorney General are no longer defenders and keepers of the law; instead they have become the doorkeepers of the ISA’s interrogation rooms. Reports published in recent years by PCATI illustrate the ongoing use of torture and ill-treatment in interrogations in Israel. These acts occur in the ISA’s interrogation rooms, under the Police and the Israeli Prison Services and within the IDF.

The Turkel Commission

In February 2013 the Turkel Commission, which examined the attack on the Gaza Flotilla, published the second portion of its report. Among the Commission’s recommendations were that external oversight of ISA interrogations be significantly enhanced and that international law’s absolute prohibition against torture and ill-treatment be enshrined in Israeli criminal law. The experts recommended, among other things, that interrogee complaints be handled by an independent body in a similar structure to the Police Investigations Division (PID), and that all ISA interrogations be visually recorded to definitively resolve the problem of conflicting accounts.

The Turkel Commission recommendations were based in part upon the testimony of experts representing the Public Committee Against Torture in Israel. These experts described the cases of Gazan residents arrested during Operation “Cast Lead” and subjected to torture and ill-treatment by the ISA.

The Commission further recommended that interrogee complaints be examined by the Police Investigations Division (PID) of the Justice Department – and not within the ISA – and that “full visual documentation” of all ISA interrogations be conducted. The first recommendation – transferring the mechanism for examining ISA interrogee complaints (the IIC) to the Ministry of Justice – took effect in 2013. Yet the change has not impacted the culture of impunity: to date the number of complaints of torture has risen to about 950, but still not a single criminal investigation has been launched.

• In 1991 B’Tselem published a report on torture written by Prof. Stanley Cohen and Dr. Daphna Golan and based on testimonies and affidavits taken by PCATI. This report, along with a follow-up report published in 1992, marked a breakthrough in the public awareness of torture in Israel.

• PCATI filed its first principle petition to the High Court of Justice (HCJ 2581/91 Morad Adnan Salhat and the Public Committee Against Torture in Israel v. Government of Israel). The petition demanded nullification of the Landau Commission’s recommendations, which permitted ISA interrogators to employ “moderate physical pressure” in interrogations. The HCJ was also asked to order the publication of the still-classified portion of the Commission’s report concerning the ISA’s interrogation techniques. The Court rejected the petition, arguing that it was overly general.

• Following the dismissal of this petition, PCATI filed another principle petition (HCJ 5100/94 Public Committee Against Torture in Israel v. Government of Israel) in 1994. In addition to the arguments raised in the initial petition, this one also claimed that the ISA’s operations lacked a legal or constitutional basis (at the time the ISA operated under a residual clause in Basic Law: the Government). Petitions filed by the Association for Civil Rights in Israel, HaMoked: Center for the Defence of the Individual and Atty. Andre Rosenthal were joined to this petition.

• The Court’s landmark ruling on HCJ 5100/94 was handed down in September 1999. The High Court’s decision forbade the use of a number of interrogation methods then in use, including: covering interrogees’ heads with sacks, around-the-clock exposure to loud music, sleep deprivation, violent shaking, the “frog” squat and shackling to a small, slanted chair. The ruling led to a reduction in the scale of torture in Israel.

• In December 1996, together with the Palestinian Center for Human Rights in the Gaza Strip, the President of France presented PCATI with the Human Rights Prize of the French Republic.

• With the outbreak of the Second Intifada in September 2000 came an increase in the number of interrogees reporting torture, though not on the mass scale reached during the First Intifada. Testimonies collected by PCATI during this period began to turn up the repeated use of torture techniques such as painful bending of the back and the tightening of handcuffs around the wrists and arms. A reversion to torture techniques which had been prohibited by the HCJ ruling was also uncovered. PCATI expanded its operations and began employing field workers and external attorneys to identify and investigate cases of torture.

• In January 2002 PCATI petitioned the High Court of Justice against Israel’s targeted assassination policy under which suspects and wanted persons are executed without a trial and any attempt at using suspect arrest procedures. The High Court’s December 2006 ruling on the petition limited the circumstances and conditions under which an assassination may be carried out. Assassination may be employed only if the individual in question is currently taking an active part in hostile activity (that is, combat action) – but not one whose role is indirect or is no longer active at the time of the attack; there is substantiated and corroborated information that the target of the assassination is indeed taking active part in hostile activities; assassination is a last resort – neither arrest nor some other action less severe than the taking of life is possible; and – when the assassination itself is liable to cause harm to bystanders – only when this harm will not exceed the action’s sought benefit. The Court likewise required that an independent retroactive examination of each targeted assassination be carried out to determine if these standards were met.

• Reports published by PCATI in recent years reveal that torture and ill-treatment continue to be used by the Israeli security forces, and that the governmental and judicial authorities not only do not take the appropriate steps to prevent it but even provide support at times;

The Rubinstein Guidelines

On the heels of the HCJ Torture ruling, the erstwhile Attorney General Elyakim Rubinstein and the Deputy State Attorney for the Criminal Division Nava Ben-Or each released foundational documents, respectively: “ISA Interrogations and the Necessity of Defense – a Framework for the Attorney General’s Discretion”; and “Circumstances under which ISA Interrogators who Acted out of a Feeling of ‘Necessity’ Shall Not Be Prosecuted.” The Attorney General’s document lays out the considerations to be included when determining the applicability of the “necessity of defense” in a certain case, recommending that senior officials be involved in such a decision. He writes that “the ISA ought to have internal guidelines which dictate the internal system of consultation and authorization the organization requires on this matter.”

Contempt of court motion, 2008

In November 2008, PCATI was joined by the Association for Civil Rights in Israel and Hamoked-Center for the Defense of the Individual in filing a motion for contempt of court proceedings based on the State’s non-adherence to the “torture ruling.” The Justices rejected the motion in July 2009, arguing that contempt of court was not the appropriate procedure for examining violations of the ruling, which they said had been of a “declarative” character.

HCJ 1265/11

PCATI filed a petition regarding the Attorney General’s comprehensive abstention from ordering the launch of criminal investigations against ISA interrogators suspected of torture and/or cruel, inhuman or degrading treatment of interrogees. The petition condemned the mechanism of the Inspector of Interrogee Complaints (IIC) and pointed out that the existing complaint examination procedure granted complete impunity to ISA interrogators and led to the comprehensive closing of hundreds of complaints without any criminal investigation, indictment or prosecution. Following the submission of this petition, the Attorney General decided to establish a right to file appeals against his decisions to close complaints against ISA interrogees – something it had theretofore systematically prevented.

The High Court of Justice’s ruling of August 6, 2012 did not strike down the preliminary examination mechanism – the IIC – nor did it require the Attorney General to launch a criminal investigation into every complaint against ISA interrogees (this being in contravention of the instructions of international human rights law to which the State of Israel is obliged). However, the HCJ did rule that, subject to the guaranteed independence of the preliminary examination mechanism and assurance of the IIC’s independence with its transfer to the Justice Department, the performance of a preliminary examination was not inherently flawed. Still, the Court did point out that the IIC (as the office authorized to order the closing of complaints) ought to receive legislative authorization not only to close files but also to launch criminal investigations.

The policy forbidding the review of IIC examination materials prior to the Petitioner’s decision to file a petition with the Attorney General was changed during the hearing of a Palestinian woman’s petition (HCJ 1294/12). The State’s response dated September 17, 2013 declared that as a rule there would be a right to review (though not to duplicate) censored examination materials. This precedent has enabled PCATI to peruse and review censored materials before the filing of an appeal.

HCJ 3533/08 Mison Swetti v. Israel Security Agency

In this petition we targeted the use of family members during interrogation as means of pressure and torture. The Court rejected the petition, reiterating the position of the Attorney General: that the use of family members during interrogation is forbidden, except when the detentions have an independent legal basis and the two relatives are suspected to be part of the same web of criminal activity. The Attorney General also emphasized that the ISA’s interrogators were made aware of the explicit prohibition against the practice of issuing threats that detainees’ family members would be harmed as a means of intimidation and pressure in the creation of interrogation-room scenarios.

The Conviction of Lieutenant Colonel Shalom Eisner

Colonel Shalom Eisner, who struck a European activist in the face with the butt of his rifle: following a complaint filed by PCATI, Lieutenant Colonel Eisner was indicted on charges of “exceeding authority” and “unbefitting behavior.” During the hearing, the Special Military Court at HaKirya [Tel Aviv] ruled in favor of a plea bargain under which Eisner was convicted of unbefitting behavior and sentenced to two months of community service, probation, and early retirement from the military. Following the incident and our complaints, Eisner was removed from his position, his appointment as Deputy Commander of an Officers’ Training School was rescinded and he was barred from command positions for two years. Meanwhile, we also pursued the rights of the complainants in the spirit of the Crime Victim’s Rights Law – which does not directly apply under the Military Adjudication Law and the army apparatus – and succeeded in bringing one of the victims to testify regarding the plea bargain at the Special Military Court at HaKirya.